Woman’s Fundamental Right To Bodily Integrity and The Principle Of Consent: A Critique On Section 63 Of The Bharitya Nyaya Sanhita.
Women Empowerment Culturist, Essayist, Thinker, Social and Legal Activist on advisories on Family Law in India, Evolutionary Developmental Feminist, Suicide Prevention Expert, Social Activist and Campaigner for Women’s Rights, Multiple State, National Award Winner and Internationally acclaimed Multiple World Record Holder, Renowned name in Contemporary Literature Authoress Mayaa SH in a candid conversation.
Bodily autonomy is defined as the right to make decisions about your own body, life, and future, without coercion or violence. It includes deciding whether or not to get intimate or not as well, use contraception, or go to the doctor. Bodily autonomy has long been recognized as a fundamental human right. The Constitution of India, which guarantees the right to life and personal liberty to all citizens under Article 21. This right has been interpreted by the Supreme Court of India to include the right to reproductive choice and autonomy for women. The right to personal autonomy is a basic right of every human being. It includes an individual’s right to develop their personality, to express hopes and dreams, and make choices and not be unreasonably limited. It means choosing whether or not to act in a certain way or have certain experiences. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly 75 years ago. Yet its promise to humanity still speaks to us today, louder than ever, calling for dignity, freedom, peace and equality for all. While people everywhere cherish these universal values, in far too many places human rights are under siege, with women and girls particularly affected. The statistics say it all: nearly half of all pregnancies are unintended; every two minutes a woman dies due to pregnancy or childbirth; one in three women experiences violence in her lifetime, with threats heightened for those living through humanitarian crises. The Universal Declaration of Human Rights and other international human rights agreements underscore that bodily autonomy is a fundamental right. People must be able and empowered to freely and responsibly make decisions about their own bodies, including if, when and how many children to have. Realizing this right includes ensuring universal access to quality reproductive health information, well being and services, even in conflict and disaster. It also depends on ending all forms of gender-based violence whenever and wherever it occurs – whether that’s in homes, the workplace, in crisis settings, or online. Harmful practices such as female genital mutilation and child marriage must also end.
Under the exception given in Section 375 of the IPC, any intercourse or acts of intimacy by a man with his wife, the wife not being minor, is not rape. Even under the new law — Bharatiya Nyaya Sanhita (BNS), exception 2 to section 63 (rape) has clarified that “any intercourse or acts if intimacy by a man with his own wife, the wife not being under eighteen years of age, is not rape”.
The newly enacted laws – the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Act – that would completely overhaul the criminal justice system have come into effect from July 1 2024. Besides the exception under the BNS, AIDWA has also challenged in the Supreme Court the constitutionality of section 67 of the BNS, which prescribes imprisonment ranging from two to seven years for married men who rape their separated wives. The plea, filed through lawyer Ruchira Goel, objected to the provision on the ground that the penalty is lower than the mandatory minimum 10-year sentence otherwise applicable in cases of rape. The petitioner emphasised that the marital rape exception violates Articles 14 and 15 of the Constitution as it negates a married women’s consent to sex and perpetuates sexual and gender stereotypes about the subordination of a woman’s individuality. It further stated that the protection of the “institution” of marriage as the “objective” to sustain the exception is wholly unjust and unfair. The petition also stated that the marital rape exception is against Article 19 (1) (a) and Article 21 of the Constitution because it takes away a married women’s rights to bodily integrity, decisional autonomy, and dignity. Given that this Hon’ble Court is seized of the matter insofar as it concerns the pari materia (in similar matter or when two provisions of two different statutes deal with the same subject) provisions of the BNS and BNSS as they were contained in the IPC and CrPC, it is prayed that this Hon’ble Court hear the instant case, which challenges provisions of the BNS and BNSS that constitute and secure the MRE (marital rape exception), respectively,” the plea said. Another plea has been filed by a man against the Karnataka High Court verdict which had paved the way for his prosecution for allegedly raping his wife. The Karnataka High Court had on March 23, 2022 said exempting a husband from allegation of rape and unnatural way of getting intimate with his wife runs against Article 14 (equality before law) of the Constitution. The feminist foremothers of the past fought hard to establish an identity for women, independent of the children they bear or care for. The association of women with children denies both their independent identity; this is more so with women, whose social worth is defined exclusively by motherhood. It is ironical that while the Indian Constitution, through Article 14 (fundamental right to equality), Article 15 (fundamental right against non-discrimination on grounds including gender), Article 16 (equality of opportunity in public employment) and Article 21 recognise women to be independent entities possessing fundamental rights, the BNS, through the title of Chapter V, relegates women to their status in ancient India – glorified apparatuses for reproduction. The chapter title also indicates that women and children are both vulnerable, weak and in need of state protection and benevolence, and have no capacity for exercising agency or autonomy. This is in direct contrast to the report of the Justice Verma Committee on amendments to criminal law (2013) which underscored the bodily integrity, autonomy, free will and agency of women. It is also pertinent to note that the offences against women and children, by the wisdom of the drafters, warranted a separate treatment and hence are not included in Chapter VI – ‘Offences Affecting the Human Body.’ In the context of a patriarchal Indian society, where many women continue to be socially, economically and emotionally dependant on their husbands, and given women’s experience of re-victimisation through a rape trial, it is hard to believe that wives will make a bee line to the nearest police station to hoist a false charge of marital rape against their husbands, and that the police will willingly register the said criminal complaint! What is warranted is a removal of the much clauses in marital rape which treats married women as chattel of their husbands.
The detailed discussion of various provisions of the new criminal laws, particularly the BNS, from a gender perspective, leads us to the conclusion that it has to be relooked at one more time to make it as an opportunity for gender justice. The new criminal laws are a watershed moment for India, nothing must be forgotten that sexual and gender-based violence is very real and life-threatening for more than half of India’s population specially women and children.The discrimination against women and girls has expressed concern about severe challenges to the universality of women’s rights in the global community. These challenges stem from economic crisis, austerity measures, as well as cultural and religious conservatism. The elimination of discrimination against women acknowledges a backlash against women’s right to equality. It is within this context of rising fundamentalisms and backlash against women’s human rights that the current discourse on the termination of pregnancy is taking place at the international level. The women’s human rights, which include the rights without discrimination to: equality, dignity, autonomy, information, bodily integrity, respect for private life, the highest attainable standard of health, including sexual and reproductive health, and freedom from torture and cruel, inhuman and degrading treatment. The right of a woman or girl to make autonomous decisions about her own body and reproductive functions is at the core of her basic rights to equality, privacy, and bodily integrity. Equality in reproductive health includes access, without discrimination, to affordable, quality contraception, including emergency contraceptio. The decision as to whether to continue a pregnancy or terminate it may shape a woman’s entire future personal life as well as family life. The decision has a crucial impact on women’s enjoyment of other human rights. The decision is therefore fundamentally and primarily the woman’s decision. The Supreme Court of India has sought the Centre’s response on a petition challenging the marital rape exception under new criminal laws. A bench headed by Chief Justice D Y Chandrachud issued notice on the petition by the All India Democratic Women’s Association (AIDWA) and said it would be listed for hearing in July alongside other petitions seeking to criminalize marital rape. The court emphasized the constitutional significance of the issue, noting that it will remain relevant despite the implementation of the new laws.
About The Author
Mayaa SH is a Championer of Women’s Rights, Authoress, Public Intellectual, and a former corporate juggernaut, Mayaa SH is a recognised crusader on Indian’s contemporary verve of economics, freedom of the press, gender neutrality and human rights, Mayaa has authored 14 bestselling works essayed as self help books and coauthored more than 150 books and has been aligned to more than 85 publication houses. She is a multi National and State Award Winner and has numerous accolades that have won her global recognition as well. Her power of self belief has helped many across the country to rediscover and reignite with themselves. This has institutionalised her infinite belief in “The Power Of A Determined Mind” and helped provide respite to many with her talks.Mayaa SH, is a literary luminary and is a fierce advocate for women’s empowerment and positive feminism. Recognized by the United Nations, she challenges societal norms and addresses gender inequality. With over 150 anthologies and fourteen solo books to her credit, Mayaa SH envisions a society where women have equal rights, contributing to the nation’s development. Her impactful contributions resonate globally, inspiring change.
Mayaa SH, a literary powerhouse and advocate for women’s empowerment, challenges societal norms through her bold narratives. Her writings, breaking stereotypes, echo gender inclusivity, earning global acclaim and multiple awards. Addressing women’s daily challenges and advocating for equal rights, she navigates stress and inspires hope through her self-help books, expertly discussing sensitive issues like suicide prevention. Mayaa’s direct storytelling, rooted in culture, deeply resonates, reflecting intimate human dilemmas. Her significance as a feminist icon lies in her fearless transgression of boundaries and her ability to voice the feminine perspective, making her an essential force in contemporary literature.
